As reported earlier, a NH jury has found a man not guilty of growing cannabis in the first-ever (that I know of) use of jury nullification in NH! Now one of the jurors, who happens to be a Free State Project participant, Cathleen, is speaking out.
Below is her written statement about her experience on the jury and here is a link to this evening’s episode of Free Talk Live, where we had Cathleen on-air to discuss.
I don’t believe in divine intervention but providence definitely was in play. To put me in the spot, the enviable spot, of a jury seat with a sympathetic defendant accused of growing pot for personal use. Not only was I lucky enough to be placed on that jury, I was lucky to not have had previous knowledge of the defendant or the case as it all came down rather close to home. About a mile away from my home to be more specific.
On July 9, 2009 a military helicopter buzzed and circled the defendant’s home and likely mine as well. Pictures, warrant, search and seizure ensued. These were the facts laid out before us. There wasn’t any conflicting testimony, none. It’s pot; he grew it; he knew it. But not case closed.
Attorney Sisti’s opening remarks told the story. The facts were only part of the story. The real question was whether a guilty verdict was the just thing to do. Testimony was cut and dried like the evidence.
Closing remarks were more impassioned. Attorney Sisti laid out what nullification was for us. The key to the explanation was the difference between must and should in the judge’s instructions. The prosecutor’s closing arguments were framed to leave the impression that nullification was only for the most extraordinary cases and gave a life or death example.
Deliberations began slowly and disorganized. When someone asked if anyone knew about nullification, I gave a brief explanation of it, mentioning FIJA and that nullification helped end alcohol prohibition. There was little discussion. The facts of the case and whether intent was clear given the defendant’s claim of legal protection for his religious sacramental use of marijuana was discussed.
When the search was discussed, I disclosed that I knew where the house was as it was near my house. This earned me an invitation to the judge’s chambers. I am pleased to say that marble and mahogany were not apparent. His concern was that the jury might be compromised by this information was put before the attorneys and the other jurors. None of this deemed to influence us, so we all went back to deliberating. Close call.
This jury did have a diverse a makeup as can be expected in NH. There were a variety of individuals from a range of walks of life if not ethnic diversity. After a couple of hours, we felt at an impasse. People of both sides of the guilty/not guilty divide couldn’t see a way to come together. The judge instructed us to keep at it. A break for the night was needed to clear thoughts and concerns.
The next morning was more organized and with more discussion of intent. The consensus was forming though toward guilt. We could clearly see the defense was resting its case on the nullification argument. We put the facts aside to give nullification consideration. The written definition was requested and posted on a chalk board. Some discussion occurred regarding what would be extraordinary enough to nullify. Several law and order proponents (not to say we all don’t want some law and order) had serious concerns about the precedent a not guilty verdict would set. What kind of chaos would ensue if this became common? Would finding this defendant not guilty give him a pass to keep on breaking the law? One by one the responses were offered and chewed upon. I fully expected a deadlock. One juror even felt relief at the prospect on the chance that the prosecution would retry.
The turning point was when one of the jurors declared that after reading the definition on nullification its reliance on “conscientious feeling” and “fair result”. It nowhere said extraordinary. And thus the last three jurors agreed that they could nullify.
